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Levin v. Barone

United States District Court, S.D. New York

March 29, 2018

Eva Levin, Plaintiff,
v.
Robert Barone, Defendant.

          MEMORANDUM OPINION & ORDER

          ALISON J. NATHAN UNITED STATES DISTRICT JUDGE.

         This matter arises from pro se Plaintiff Eva Levin's suit to enforce a United States Citizenship and Immigration Services Affidavit of Support, Form 1-864, against her now ex-husband, counseled Defendant Robert Barone. Barone and Levin each move for summary judgment. For the reasons below, Barone's motion is granted and Levin's motion is denied.

         I. BACKGROUND

         A. Statutory Framework

         Before considering the facts of this case, the Court briefly describes the statutory and legal framework at issue.

         Federal law prohibits a citizen of the United States from sponsoring for admission to the country any non-citizen who "is likely at any time to become a public charge." 8 U.S.C. § 1182(a)(4)(A). A person who sponsors his non-citizen spouse or fiancee for admission must therefore execute an Immigration Services Affidavit of Support, Form 1-864, 8 C.F.R. § 213a.2(a), (b), in which "the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable, " 8 U.S.C. § 1183a(a)(1)(A).

         The Form 1-864 forms a legally binding and enforceable contract between the sponsor executing the form and the sponsored immigrant. Cheshire v. Cheshire, 05-cv-00453 (TJC) (MCR), 2006 WL 1208010, at *3 (M.D. Fla. May 4, 2006)). Indeed, the Immigration and Nationality Act explicitly states that the Affidavit of Support is "legally enforceable against the sponsor by the sponsored alien." 8 U.S.C. § 1183a(a)(1)(B). A sponsor's obligations under Form 1-864 may be terminated in five specific circumstances, but not as a result of divorce or divorce proceedings. See Shumye v. Felleke, 555 F.Supp.2d 1020, 1024 (N.D. Cal. 2008) (explaining that obligations terminate if "(1) the sponsor dies, (2) the sponsored immigrant dies, (3) the sponsored immigrant becomes a U.S. citizen, (4) the sponsored immigrant permanently departs the U.S., or (5) the sponsored immigrant is credited with 40 qualifying quarters of work").

         B. Factual and Procedural Background

         In January 2010, Barone, a U.S. citizen, married Levin, a citizen of Sweden. Dkt. No. 92, Ex. A at 1 (State Court Decision) at 2; Dkt. No. 89 at 5 (Defendant's 56.1 Statement) at ¶¶ 3-5; Dkt. No. 97 (Plaintiffs 56.1 Response) at ¶¶ 3-5. As part of the process for obtaining a legal immigration status for Levin, Barone signed Affidavit of Support, Form 1-864, affirming that he would provide adequate means of support for Levin. See Dkt. 92, Ex. E at 17 (Barone Affidavit) at ¶ 6. Around 2011, the parties separated. Id. at ¶ 9.

         On January 27, 2014, Levin brought this action in federal court seeking to require Barone's compliance with the Affidavit of Support. Dkt. No. 2. Levin has requested specific amounts of money for at least each year from 2011 through 2016. See Dkt. No. 48. It appears that Levin has worked recently, but it is unclear how much money Levin earned from that employment. See Dkt. No. 66.

         Around the same time that Levin filed this suit, Barone brought an action for divorce in New York Supreme Court. See State Court Decision at 2; Defendant's 56.1 Statement at ¶ 6; Plaintiffs 56.1 Response at ¶ 6; Dkt. No. 92, Ex. E at 60 (Action for a Divorce).

         Whether the instant case was filed before the state court action appears to be disputed. See Defendant's 56.1 Statement " ¶¶ B, 7; Plaintiffs 56.1 Response at ¶¶ B, 7. Barone claims that this case was filed after the divorce proceeding, but the Action for a Divorce suggests that the divorce proceeding was initiated either the same day as, or one day after, this action was commenced. See Dkt. No. 2; Defendant's 56.1 Statement ¶¶ B, 7; Action for a Divorce.

         On September 5, 2014, Barone filed a motion to dismiss Levin's complaint. Dkt. No. 17. The Court denied that motion but stayed the case pending the duration of the state court divorce proceeding. Dkt. No. 36.

         On April 2, 2015, the state court explained that Levin's annual income was $13, 000, State Court Decision at 5, and noted that when Levin had worked as a dancer, she had earned $3, 000 a week, Dkt. No. 92, Ex. B (Transcript of State Court Proceeding) at 17:13. It then ...


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